# United States Court of Appeals

For the Seventh Circuit Chicago, Illinois 60604

Submitted April 4, 2018

Decided April 4 , 201 8

Before

DIANE P. WOOD , C hief Judge

WILLIAM J. BAUER , Circuit Judge

MICHAEL S. KANNE , Circuit Judge

No. 17

- 2461

UNITED STATES OF AMERICA , Plaintiff

- Appellee ,

v

.
JOHN GHERNA , Defendant

- Appellant

. Appeal from the United States District Court for the Central District of Illinois.

No. 16

- 20050

- 001

Colin S. Bruce , Judge

.


### O R D E R

A fter a police officer found that John Gherna’s computer was being used to share and download child pornography , Gherna was arrested

. W ithout the benefit of a plea agreement , he pleaded guilty to one count of receipt of child pornography, 18 U.S.C. § 2252A(a)(2)(A), and one count of possession of child pornography, 18 U.S.C

. § 2252A(a )(5)(B) . Gherna was sentenced to 210 mo nths’ imprisonment on each count, to be served con currentl y, and 15 years’ supervised release . He received several sentencing adjustments, including one for obstruction of justice, U.S.S.G. § 3C1.1

. Gherna seeks to appeal but his attorney has asked to with draw because she believes an appeal would be frivolous. See Anders v. California , 386 U.S. 738 (1967). NONPRECEDENTIAL DISPOSITION To be cited only in accordance with Fed. R. App. P. 32.1No. 17

- 2461 Page 2

Because Gherna has not responded to counsel’s motion, s ee C IR

. R. 51(b), and

c ounsel’s brief explains the nature of the case and thoroughly addresses i ssues that an appeal of this ki nd might be expected to involve, we limit our review to the subjects that counsel discusses. See United States v. Bey , 748 F.3d 774, 776 (7th Cir. 2014); United States v. Wagner , 103 F.3d 551, 553 (7th Cir. 1996).

Counsel re ports that s he asked Gherna if he wanted to withdraw his guilty plea. Since Gherna said that he does not , counsel rightly refrains from exploring arguments about whether the plea was knowing and voluntary. See United States v. Konczak , 683 F.3d 348, 349 (7th Cir. 2012); United States v. Knox , 287 F.3d 667, 670

– 71 (7th Cir. 2002).

Next c ounsel explores whether Gherna could contest the imposition of a
two

- level adjustment for obstruction of justice under U.S.S.G. § 3C1.1 , but she prop erly concludes that doing so would be frivolous

. The sentencing judge applied the adjustment because Gherna called his family from prison and asked his sons to “step up” and say that they downloaded images on Gherna’s computer. Although defense counsel arg ued that Gherna’s communications amounted to no more than his constitutionally protected right to develop a defense, the judge concluded that Gherna was coaching his family to lie. The judge based that conclusion on the transcripts of the phone calls excer pted in the PSR . Gherna prompt ed his family about what to say, advis ed that they “commit it to memory , ” and recited facts that they should have known without any encouragement or reminder (such as whether they were living at the house and using Gherna’s co mputer)

. See , e.g. , United States v. Ewing , 129 F.3d 430, 434 (7th Cir. 1997) (discussing cases where obstruction adjustments were affirmed because defendants’ communications were “thinly veiled means of rehearsing their cover story”)

. Therefore i t would be frivolous to argue that the judge clearly erred.

Finally, c ounsel considers whether Gherna could challenge the reasonableness of his 210

- month sentence. But the sentence imposed is within the guidelines range of 210

– 262 months (based on a total offense level of 32 and a criminal history category of VI), and therefore is presumptively reasonable , United States v. Adams , 879 F.3d 826, 829 (7th Cir. 2018) . C ounsel does not identify any reason to rebut that presumption here, and we perceive none.

Accordingly, we GRANT counsel’s motion to withdraw and DISMISS the appeal.